Land and Environment Court New South Wales

• Medium Neutral Citation: Bartlewicz v O'Donnell [2011] NSWLEC 1278
• Hearing dates: 28 September 2011
• Decision date: 28 September 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction to sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr P Bartlewicz (Applicant); Mr S O'Donnell (Respondent)
• Representation: Applicant: Mr P Bartlewicz (Litigant in person); Respondent: Mr S O'Donnell (Litigant in person)
• File Number(s): 20428 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Currans Hill against the owner of trees growing on an adjoining property.

2 The applicant is seeking orders for the trees to be pruned to the height of the dividing fence between the parties' properties on the basis that the trees severely obstruct sunlight to four windows of the applicant's dwelling.

3 It is noted that the Tree Dispute Application refers to issues relating to future damage that the trees may cause to the fence and a retaining wall, however no Tree Dispute Claim Details (Damage to property of Injury to Persons form was filed by the applicant. This discrepancy was pointed out to the applicant at the directions hearing and leave was granted at the on-site hearing to amend the orders to those now sought by the applicant.

4 The trees are a row of Photinia glabra 'Super Bronze' planted some seven years ago by the respondent when he purchased his property. They are growing in a narrow garden bed that adjoins the dividing fence. The fence and the trees are in a north-northeast to south-southwest orientation. The applicant's property is generally to the west of the respondent's property.

5 The height of the trees was measured at the hearing. The trees are an average height of 2.8m above the ground level on the respondent's property. They are planted so as to form a hedge and are on appropriately zoned land; therefore the jurisdictional test in s 14A of the Act is satisfied. It is clear that the trees are regularly pruned and form a tight hedge.

6 The respondent contends that the trees provide shade to his rear garden.

7 The applicant's dwelling is approximately 900mm below (down slope of) the respondent's property. The dividing fence sits atop a brick retaining wall. The top of the fence is approximately 2.8 m above the concrete path between the applicant's dwelling and the retaining wall. The fence is slightly higher than the height of the gutter on the applicant's roof above the windows in contention. The trees protrude approximately 900mm above the fence. The guttering is about 1.3 m from the fence, and the eaves above the windows are approximately 700mm wide.

8 The windows nominated in the application form are all located on the eastern side of the dwelling. Window 1 (W1) is a bathroom window, W2 is a bedroom window, W3 is the window of the dining room and W4 is a window in an ensuite bathroom.

9 The applicant's main living area, and the area where he and his wife spend most of their time, includes the northern and western portions of their dwelling. The main garden area is to the west of the dwelling.

10 The applicant, in the application claim details, states that 4-6 hours of sunlight are lost from the windows. On reflection, the applicant considered that this was an exaggeration and contacted the Land & Environment Court registry to inform them of his mistake. However, when asked at the hearing as to how much sun had been lost to each of the windows as a result of the trees, the applicant was unable to give any information except to say that the windows did receive sun before the hedge grew to its current height.

11 Section 14E states:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

12 In this matter I cannot be satisfied on the evidence before me that the trees concerned severely obstruct sunlight to windows of the applicant's dwelling. However, even if I was to put the applicant's case at its highest and accept his statement that he used to have sun before the trees attained their current height, I consider that the principal obstructions to sunlight reaching the windows are factors other than the trees.

13 In my view, sunlight to the windows is obstructed by: the height of the fence and the down-slope location of the applicant's dwelling; the relatively narrow gap between the applicant's guttering and the fence; the width of the eaves; and the oblique angle of the dwelling to the path of the sun. All of these factors suggest that the amount of sunlight available, absent the hedge, is inevitably limited.

14 I also note that the windows said to be obstructed are not, with the exception of the dining room, windows of living rooms. The applicant stated that the dining room is only used occasionally.

15 Therefore, even if s 14E(2)(a)(i) was satisfied, s 14(2)(b) is not, and therefore the Court cannot make any orders for any intervention with the hedge.

16 Therefore, on the evidence before me, the Orders of the Court are:

(1) The application is dismissed.

_______________________________

J Fakes

Commissioner of the Court

Decision last updated: 28 September 2011